In 2014 the D.C. Council approved the Fair Criminal Records Screening Act of 2014. This law applies to all employers with 11 or more employees. The recognized term for the law is “ban-the-box” because employers are no longer allowed to inquire into a prospective employee’s criminal background—banning the check box on an application about criminal arrests or convictions. However, it is important to note that while ban-the-box is law, it does not summarily prohibit an employer from accessing an applicant’s criminal background report. The law simply delays the criminal background check until the very end of the hiring process.
Ban-the-Box Applies to Most Private District Employers
Since December 17, 2014, all employers with at least 11 employees in the District are required to adhere to ban-the-box requirements. Employers may not place a question about a job applicant’s criminal history on an employment application or inquire into an applicant’s criminal background until after a conditional offer of employment, or a time when the employer clearly indicates to an applicant that a job is conditioned on a criminal background investigation. Exemptions apply for employers that are required to have a criminal background investigation by law for returning citizen employment programs; and where an employee will be exposed to minors and vulnerable adults.
Specific Ban-the-Box Requirements for Employers during the Hiring Process
On the initial application form or during the hiring process, the law prohibits employers from inquiring into: arrests; criminal accusations made against the applicant that are not pending or did not result in a conviction; and criminal convictions. During the interview process an employer may not inquire into any of the items listed in the initial application section.
Once a conditional offer of employment is extended to the employee, the employer may only inquire into an applicant’s criminal convictions. At no time may a potential employer ask an applicant about arrests or criminal accusations not pending.
Q. Which employers are subject to the law?
Q: What type of inquiry is excluded under the law?
A: Covered employers cannot engage in any direct or indirect conduct intended to gather criminal history information from or about an applicant using any method, including application forms, interviews, and criminal history checks before offering the candidate a job. Criminal history information includes:
- Arrests (being apprehended, detained, taken into custody, held for investigation, or restrained by a law enforcement agency due to an accusation or suspicion that the person committed a crime);
- Criminal accusations made against the applicant that are not pending or did not result in a conviction (an existing accusation that an individual has committed a crime, lodged by a law enforcement agency through an indictment, information, complaint, or other formal charge); and
- Criminal convictions (any sentence arising from a verdict or plea of guilty or nolo contendere, including a sentence of incarceration, a suspended sentence, a sentence of probation, or a sentence of unconditional discharge).
Q: When, and under what circumstances can a potential employer ask a candidate about past arrests or convictions?
A: Generally, an employer with at least 11 employees may not attempt to determine an applicant’s criminal history until after making a clear offer of employment that is conditioned on a satisfactory criminal background investigation.
Q: Are there any exceptions to the ban-the-box law?
A: Yes. The following three exceptions apply:
- Positions required by state or federal law to include a criminal background investigation (for example, armed security);
- Positions designated by government program or obligation to encourage employment of those with criminal histories;
- Positions with any employer that provides programs, services, or direct care to minors or vulnerable adults. An example includes applicants seeking placement as cleaning or maintenance staff in a childcare facility, school, some universities, and facilities for vulnerable adults.
Q: Does the law distinguish between arrests or convictions in other jurisdictions than D.C.?
A: No, the law prohibits any inquiry into arrests, criminal accusations not pending, and criminal convictions.
Q: What if an applicant volunteers his or her criminal background?
A: While an employer may not ask or investigate an applicant’s criminal convictions until after a conditional offer of employment, the law does not address the employer’s response when an applicant chooses to divulge his or her criminal background.
Q: What if an applicant is given a conditional offer and his or her criminal background makes the employer decide the applicant is not suitable for the position because of his or her criminal convictions?
A: An employer who properly asks about a criminal conviction can only withdraw the offer or take adverse action against the applicant for a legitimate business reason that is reasonable when considering all of these six factors:
- Specific duties and responsibilities necessarily related to the employment;
- Fitness or ability of the person to perform one or more job duties or responsibilities given the offense;
- Time elapsed since the occurrence of the offense;
- Age of the applicant when the offense occurred;
- Frequency and seriousness of the offense; and
- Information provided by applicant on his or her behalf that indicates rehabilitation or good conduct since the offense occurred.
Q: What is an employer’s responsibility after denying employment based on a legitimate business reason that is reasonable under the six factor test?
A: An employer that rescinds a conditional offer of employment or takes adverse action on an applicant based on a criminal background, must provide to the applicant a notice advising the applicant about the right to file a complaint with the District’s Office of Human Rights. Within 30 days of the action by the employer, an applicant can request a copy of all records procured by the employer in consideration of the applicant, including criminal records. The employer must provide the documentation within 30 days of receipt of the request. The District of Columbia Office of Human Rights (“OHR”) is charged with enforcing the law. OHR accepts and investigates complaints that allege violations of the law, and when violations are found, penalties can be imposed.
Q: What are the penalties for violation of the law?
A: If the Commission on Human Rights determines a violation occurred, penalties may be imposed with half of the amount going to the complainant and half to the District, up to the following amounts:
- $1000 for employers with 11 to 30 employees;
- $2500 for employers with 31 to 99 employees; and
- $5000 for employers with 100 or more employees.
This material is for informational purposes only and should not be relied upon as legal advice. For legal assistance, contact our Firm through the “Contact Us” section of our website, or call us at 202-795-9999.